You pay peanuts, you get ...

In the dim and distant days of 2014, before these days of “fake news,” incessant clickbait and increasingly esoteric legal problems being thrown up by the internet users and social media, one might reasonably have been excused for raising an eyebrow in surprise at the news that a legal dispute had arisen in the United States as to whether a monkey (specifically a black Macaque called Naruto) was entitled to own the copyright in a photo that he took of his grinning simian chops using a camera owned and put in place by British freelance photographer David Slater.

However, such a dispute did arise three years ago when Mr Slater (or rather his company Wildlife Personalities Limited), not unreasonably perhaps, felt it was unfair that the image which he had spent a considerable amount of time, patience and skill in order to obtain was being used all over the internet by the likes of Wikipedia and others, without paying any royalty or giving any acknowledgment to him.

Wikipedia refused to take the image down, asserting that as the monkey had taken the photograph by pressing the button on the camera, he was the creator of the work, and thus the owner of the copyright. The US Copyright Office provided a ruling that animals could not own copyright, but this only triggered the charity People for the Ethical Treatment of Animals (PETA) to become involved, launching their own litigation “on behalf of” Naruto in 2015 seeking financial control of the images for the benefit of Naruto and his community of black macaques on Sulawesi, Indonesia.

A US District Judge ruled in favour of Mr Slater last year finding that there was no evidence that the (US) Copyright Act was ever intended to extend ownership rights to animals. PETA, however, appealed to the Federal 9th Circuit, a 3-Judge panel of which heard oral evidence in July, with PETA arguing that the case went to the very heart of whether or not “fundamental rights” should be extended to animals, whilst lawyers for Mr Slater argued not only that copyright could not be extended to Macaques, but even as to whether the correct Macaque had been named in the litigation.

In August, the parties advised the Court in San-Francisco that they were close to reaching a settlement, and today an announcement has been reached that the Court will not be making a ruling on the question of animal ownership of copyright, on the basis that the parties have agreed terms. This appears to include an agreement by Mr Slater that he will donate 25% of all revenues from the images to charities protecting macaques in Indonesia. There has at the time of writing seemingly been no comment on how much revenue the images have generated or might generate, or whether this means that going forwards, Mr Slater will be entitled to keep 75% of that revenue.

This has of course been a piece of US litigation, and the English Courts have not yet been asked to consider a similar question. However, it prompts a number of interesting trains of thought about the ownership of copyright by non-human creators of potentially copyright-qualifying works.

In particular, whilst we might not expect a rise in the number of Macaques taking up freelance photography (or even an infinite number of Chimpanzees being given typewriters), it seems likely that the law is sooner or later going to have tackle in a very concrete way the issue of non-human-created copyright works in the form of works created by increasingly sophisticated forms of Artificial Intelligence, and - as AI gets ever closer to something like self-awareness - to do so in a manner more sophisticated than simply saying “well who programmed the AI in the first place?” At the moment, monkeys and robots would fall outside of the ordinary understanding of a legal person under English Law, but will that always be a sufficient answer?

In addition, the case raises an interesting question with regard to Charities and litigation. Some supporters of PETA have been less than pleased that the organisation has applied charitable funds to fighting costly litigation aimed, essentially, at securing intellectual property rights for animals. One might ask whether (when compared to a right to be protected from harm, or to be treated humanely, or to be at liberty) the right to benefit from intellectual property truly has the character of a “fundamental right.” Charities and their Trustees must always give serious consideration before embarking on litigation as to whether the risks and the likely costs inherent in the case are truly a worthwhile exercise in pursuit of the charity’s objects, and whether the potential for reputational risk is justified. They should (at least in England and Wales) have regard to the appropriate guidance document on Charities and Litigation (CC38) published by the Charities Commission.

These questions are, of course, too large for detailed discussion here but what initially appears to be almost a humorous “end of the news” sort of story could actually point to some potentially significant legal issues.

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